Bill's `Excellent' Choice

May 16, 1994

WE should only applaud the skill of a politician when he finds the intersection of political expediency and public good.

Bill Clinton's critics may argue that in choosing Stephen Breyer, chief judge of the United States Court of Appeals for the First Circuit in Boston, he has backed away from the Supreme Court nominee he really wanted, Bruce Babbitt, simply to avoid a political fight. Although Mr. Babbitt was likely to have won US Senate confirmation, the proceedings could have been a bitter and divisive show. Worse for the president, the battle over Mr. Babbitt's replacement as interior secretary could have turned into a referendum on the administration's land management policies in the American West, a debate that could have echoed until it became a campaign issue in not only 1994 but 1996 as well.

Mr. Clinton obviously has chosen to fight his political battles elsewhere, such as over health-care reform.

Efforts to divine the political meaning behind the nomination should in no way detract from the choice of Judge Breyer. While he may be a second choice, he is not second rate. By all reports he is a man who combines great intellect with humility, erudition with an interest in writing decisions in a way that an intelligent high school student can understand them.

What the president did not get was a liberal, activist successor to outgoing Justice Harry Blackmun. Oddly, a Breyer appointment would move the court to the right under a Democratic president. Clinton also did not get, as he said he wanted, a nominee with broad political experience, though Breyer has served as a counsel to Senate committees. And he does not provide racial, ethnic, or gender diversity, as did the last two nominees, Clarence Thomas and Ruth Bader Ginsburg.

Breyer and fellow New Englander David Souter are likely to form a strong intellectual axis taking centrist positions, a counterweight to Justice Antonin Scalia's strongly argued conservative views.

Breyer, for example, supports using the legislative history behind laws to help interpret them; Justice Scalia has been the leading critic of this approach.

In making his announcement of the nomination, the president repeatedly used the word ``excellence'' to describe Breyer's judicial qualifications. Whatever political maneuvering led up to his choice, Clinton has chosen on the proper basis, excellence.